Ryan Sager, a libertarian-minded NY Post editorial board member, makes a cogent argument in "Courting Gay Backlash" that fighting for marriage equality by persuading voters is a better long-term strategy than seeking court decrees that ultimately provoke a hostile populace to support measures worse than the status quo, such as amending state and federal constitutions. He writes:
"Gay marriage advocates ought to realize that there would be much to gain by engaging in democratic debate and compromise, rather than filing lawsuits all around the state as they have. Cutting the people out of the process not only disenfranchises them -- it lets them off the hook. Shouldn't those opposed to gay marriage be asked to confront the people they wish to relegate to an unrecognized netherworld? A spotlight on the inhabitants of this world might change some minds, if advocates could be troubled to shine it."
I think Sager has a point -- up to a point. Some gay advocates are far too eager to seek judicial action as a solution. And not just for marriage but to for all manner of perceived slights and injustices -- occasionally at the expense of constitutional rights such as freedom of association (i.e., when the Boy Scouts or St. Patrick Parade organizers don't want to let us into their private clubs). This is what lawyers do, after all -- they sue. But in jurisdictions where public opinion can be mobilized in our favor, a legislative or plebiscitary victory is much firmer ground for advancing our rights.
On the other hand, liberals have a point that courts exist to
protect minorities from majority tyranny. If constitution
guarantees of equality under the law are not likely to be realized
due to widespread and deeply rooted animus, it is the role of the
courts to defend those rights. But big social revolutions are
predicated on many small victories, and working at winning popular
support for the cause, especially where it is likely to be
winnable, is in fact a smarter strategy than "courting backlash"
among the benighted.
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